Citation Nr: 21008551 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 19-32 512A DATE: February 17, 2021 ORDER Entitlement to service connection for a sleep disorder, including obstructive sleep apnea, as secondary to service-connected disabilities, is granted. Entitlement to service connection for migraine headaches, to include as secondary to service connected disabilities, is granted. Entitlement to service connection for hypertension, to include as secondary to a service-connected disability, is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to an initial disability rating in excess of 70 percent for the service-connected major depressive disorder is denied. Entitlement to a disability rating in excess of 20 percent for the service-connected status post dislocation of the right shoulder with right shoulder reconstruction (hereinafter, “right shoulder disability”) is denied. Entitlement to an effective date prior to October 3, 3017 for the grant of service connection for a major depressive disorder is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted, subject to the regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a neck disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran has developed obstructive sleep apnea that was caused or aggravated by his service connected right shoulder and major depressive disabilities. 2. The preponderance of the evidence shows that the Veteran has developed migraine headaches that were caused or aggravated by his service connected right shoulder disability, major depressive disorder, and OSA. 3. At no time during the current appeal has the Veteran been diagnosed hypertension related to his active duty. 4. At no time during the current appeal has the Veteran been diagnosed with a left or right knee disability related to his active duty. 5. At no time during the current appeal period has the Veteran exhibited total social impairment due to his service-connected major depressive disorder. 6. For the entire appeal period, the Veteran’s right shoulder was, at worst, limited to shoulder level and infrequent episodes of recurrent dislocation and guarding of movement at shoulder level. 7. The Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder arose on October 3, 2017, and no earlier. 8. The Veteran’s service-connected disabilities preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea, as secondary to service-connected disabilities, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for migraine headaches, as secondary to service-connected disabilities, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for hypertension, to include as secondary to a service-connected disability, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for left and right knee disabilities have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. 5. The criteria for a rating in excess of 70 percent for the service-connected major depressive disorder have not been met at any time during the appeal period. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.130, DC 9434. 6. The criteria for a disability rating in excess of 20 percent for the service-connected right shoulder disability have not been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5003-5202. 7. The criteria for an effective date earlier than October 3, 2017, for the grant of service connection for a major depressive disorder have not been met. 38 U.S.C. §§ 5110, 5107(b); 38 C.F.R. § 3.400. 8. The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25, 4.26. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1992 to March 1993. This appeal stems from a March 2018 rating decision. In the Veteran’s Notice of Disagreement, he contended both that his right shoulder condition warranted a higher rating than 20 percent (which was the result of a reduction from a 30 percent rating) and that the effective date of that determination was erroneous. As a threshold matter, the Board need not discuss the propriety of the reduction of the Veteran’s right shoulder rating from 30 percent to 20 percent (in the March 2018 rating decision) because his overall rating was not reduced as a result of the single rating reduction. (In the March 2018 rating action, the agency of original jurisdiction (AOJ) also granted service connection for a major depressive disorder and awarded an evaluation of 70 percent for this now service-connected disorder. Thus, his overall service-connected disability rating rose from 30 percent to 80 percent from the date his claim was received, October 3, 2017.) Thus, there was no harm to the Veteran in the reduction of the evaluation for his service-connected right shoulder disability, and the issue regarding the propriety of this rating reduction is moot. See Stelzel v. Mansfield, 508 F.3d 1345 (Fed. Cir. 2007); 38 C.F.R. § 3.105(e). In consideration of the Veteran’s contention for an earlier effective date, it is unclear if he is arguing the effective date of the reduction, or a higher rating, as he has not offered argument or explanation of his contention for an earlier effective date of the right shoulder rating. In deference to the Veteran, the Board has addressed his claim for increased rating of the right shoulder for the entire appeal period, including a one year look-back period from the date of his claim for increased rating, which was received by VA in October 2017, as addressed below. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptoms after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established for any disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. Sleep Apnea The Veteran contends that his diagnosed obstructive sleep apnea (OSA) is caused by his service-connected conditions. The Board finds there is a preponderance of the evidence showing that the Veteran’s service-connected right shoulder and major depressive disorder are significant factors in the development of his OSA and that, therefore, service connection for OSA on a secondary basis is warranted. VA treatment records indicate that the Veteran has been diagnosed with sleep apnea and has been prescribed a CPAP. There is no evidence that the Veteran experienced OSA during service, and the Veteran has not argued as such. In a private medical opinion received in October 2020, Dr. S.E. opined that it was at least as likely as not that the Veteran’s right shoulder pain, the medications used to treat his pain, his depression symptoms, the medications to treat his symptoms, as well as his obesity have resulted in his OSA. Dr. S.E. further explained that it was not possible to differentiate how much each of the Veteran’s risk factors have contributed to his sleep apnea, but that they have all played a role in the cause and permanent aggravation of his OSA. The Veteran has not undergone a VA examination for sleep apnea, nor has a contrary opinion been found in the record. The October 2020 opinion is competent, well-reasoned, and persuasive. As such, the preponderance of the evidence shows that the Veteran has obstructive sleep apnea that is etiologically related to his service connected disabilities. Service connection for OSA, as secondary to the service-connected disabilities, is warranted. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Migraine Headaches The Veteran contends that he suffers from migraine headaches as a result of his service-connected disabilities. The Board finds there is a preponderance of the evidence showing that his service-connected right shoulder disability, major depressive disorder, and OSA (as established above), are significant factors in the development and aggravation of his migraine headaches. Service connection for this disability is, thus, warranted on a secondary basis. VA treatment records do not contain any evidence that the Veteran complained of headaches. Significantly, however, in an October 2020 private medical opinion, Dr. S.E. stated that the Veteran’s right shoulder condition, depressive disorder, and OSA cause and permanently aggravate his migraine headaches. The Veteran has not undergone a VA examination for headaches, nor has a contrary opinion been found in the record. The October 2020 opinion is competent, well-reasoned, and persuasive. As such, the preponderance of the evidence shows that the Veteran has headaches that are etiologically related to his service connected conditions. Service connection for migraine headaches, as secondary to the service-connected disabilities is, therefore, warranted. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Hypertension The Veteran contends that he has high blood pressure related to his active service or his service-connected conditions. The Board finds there is insufficient evidence to show the Veteran has a current high blood pressure condition that can be linked to his active duty service. The Veteran’s service medical records do not contain any record of blood pressure outside normal range, nor are there any notes in his service medical records concerning blood pressure being high or abnormal. His VA treatment records show that high blood pressure can be a complication of his obesity and OSA. Significantly, however, there is no diagnosis of hypertension or any record of sustained high blood pressure readings. The Veteran has not submitted any evidence or argument to support his claim showing a current diagnosis of hypertension. There is insufficient evidence to show that he has been diagnosed with hypertension at any time during the appeal period. The presence of a current disability is a threshold matter for consideration of service connection. Here, the evidentiary requirement of demonstrating a current disability has not been satisfied. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Without a diagnosis, the claim for service connection fails. Brammer v. Derwinski, 3 Vet. App. 223 (1992). There is no doubt of material fact to be resolved in the Veteran’s favor, and the claim for service connection for hypertension is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Left and Right Knee Disabilities The Veteran contends that he has a bilateral knee disability related to his active service. The Board finds there is insufficient evidence to show that he has a current disability of either knee that can be linked to his active duty. The Veteran’s service medical records do not contain any record of complaints, treatment, or diagnosis of a knee injury or condition. Further, VA treatment records indicate that he experienced a contusion on his left knee in 2002, reported a history or torn ligaments in his right knee, but included no diagnosis of a current condition. In April 2017, he reported knee pain in concert with low back pain, but there was no further complaint, treatment, or diagnosis of a knee condition or functional loss due to knee pain of either knee. The Veteran has not submitted any evidence or argument to support his claim showing a current diagnosis of a knee condition. The Board finds there is insufficient evidence to show the Veteran has a currently diagnosed left or right knee disability at any time during the appeal period. Such a finding is a threshold matter for consideration of service connection. Thus, the evidentiary requirement of demonstrating a current disability has not been satisfied. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Without a diagnosis, the claim for service connection fails. Brammer v. Derwinski, 3 Vet. App. 223 (1992). There is no doubt of material fact to be resolved in the Veteran’s favor, and the claim for service connection for a disability of either knee is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate Diagnostic Codes (DCs) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Although a disability must be considered in the context of the whole recorded history, including service treatment records, the present level of disability is of primary concern in determining the current rating to be assigned. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If a disability has undergone varying and distinct levels of severity throughout the claims period, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. When a question arises as to which of two ratings applies under a particular DC, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Hyphenated DCs are used when a rating under one diagnostic code requires the use of an additional DC to identify the basis for the rating assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27. Entitlement to a disability rating greater than 70 percent for the service-connected major depressive disorder The Veteran contends that the symptoms of his major depressive disorder warrant a complete disability rating. The Board finds that, for the entire appeal period, the Veteran has not exhibited total social impairment and that, therefore, a 100 percent rating is not warranted. A critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. A 70 percent rating is assigned with an occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. See 38 C.F.R. § 4.130 DC 9411. A 100 percent is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130 DC 9411. In an August 2020 lay statement, the Veteran described his mental health symptoms as including being easily irritated and provoked, isolation, avoidance of crowds and public, memory loss, and concentration issues. On VA examination in March 2018, the Veteran’s symptoms were listed as including a depressed mood; anxiety; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; flattened affect; and disturbances of motivation and mood. The examiner indicated that the Veteran’s grooming and hygiene were marginal, that he had virtually no eye contact, and that his speech was slow. His mood was dysphoric and forlorn, but he denied suicidal or homicidal ideation. In August 2020, VA received a statement from the Veteran’s spouse, wherein she described the Veteran’s decline in social skills and resulting isolation. She also reported that his medications affect his ability to focus and impairs his memory. The Board acknowledges that the Veteran’s depression affects his ability to socialize outside the home. It does not appear, however, that the Veteran exhibits total social impairment. While he can no longer be as physically interactive with his grandchildren, there is no evidence that he is isolated from his family, and it appears that he has a strong social network through his spouse and family. Thus, the Board finds that for, the entire appeal period, the Veteran’s symptoms most closely aligned with the criteria for a 70 percent rating and that a 100 percent disability rating is not warranted. Entitlement to a disability rating greater than 20 percent for the service-connected right shoulder disability The Veteran contends that his right shoulder condition warrants a disability rating in excess of 20 percent. The Board finds that, throughout the appeal period, the Veteran’s right shoulder condition has not resulted in recurrent dislocation with frequent episodes and guarding of all arm movements or limitation of motion less than shoulder level. The Veteran is currently service-connected under DC 5003-5202 for status post dislocation of the right shoulder with right shoulder reconstruction, with a rating of 20 percent based on limitation of motion and associated functional limitations. The diagnostic codes applicable to a rating of the shoulder are between DCs 5200-5203. Ratings vary depending on whether the impairment is to the major or minor arm. In this case, the Veteran is right hand dominant, so only the ratings for impairments to the “major” arm are applicable and will be set forth below. Normal shoulder flexion and abduction is from 0 to 180 degrees (90 degrees at shoulder level), and normal internal and external rotation is from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. Under DC 5200 for ankylosis of the major scapulohumeral articulation (the scapula and humerus move as one piece), a 30 percent rating is assigned when the ankylosis is favorable with abduction to 60 degrees such that a person can reach his mouth and head, a 40 percent rating is assigned the arm when the ankylosis is considered to be intermediate that is between favorable and unfavorable, a 50 percent rating is assigned when the ankylosis is considered to be unfavorable, such that abduction is limited to 25 degrees from the side. Under DC 5201 for limitation of motion of the arm, a 20 percent rating is assigned when the range of motion is limited to shoulder level, while a 30 percent rating is assigned when the maximum range of motion is limited to midway between side and shoulder level, and a 40 percent rating is assigned when range of motion of the arm is limited to 25 degrees from the side. Under DC 5202 for other impairment of the humerus, when there is malunion of the humerus, a 20 percent rating is assigned with moderate deformity and 30 percent is assigned for a marked deformity. A 20 percent rating is also assigned when there is recurrent dislocation of the humerus at the scapulohumeral joint, with infrequent episodes, and guarding of movement only at shoulder level, or 30 percent rating with frequent episodes and guarding of all arm movements. A 50 percent rating is assigned when there is fibrous union of the arm; a 60 percent rating is assigned when there is nonunion of (false flail joint) the humerus in the arm; and an 80 percent rating is assigned when there is loss of head of (flail shoulder) the humerus in the arm. Under DC 5203 for impairment of the clavicle or scapula, a 10 percent rating is assigned for malunion or for nonunion without loose movement. When there is nonunion with loose movement, a 20 percent rating is assigned. A 20 percent rating is also assigned when there is dislocation of the clavicle or scapula. The Board also notes that degenerative arthritis is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200, etc.). 38 C.F.R. § 4.71a, DC 5003. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In determining the actual degree of disability with respect to the Veteran’s right shoulder disability, contemporaneous medical records and an objective examination by a medical professional are more probative of the degree of the impairment than his lay opinions. This is particularly so where the rating criteria require analysis of the clinical significance of medical symptoms, even if the existence of symptoms is observable by a layman. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012). On VA examination in November 2016, the Veteran reported a worsening of his right shoulder condition. Flexion was measured to 160 degrees, with normal rotation and no loss of muscle movement. The examiner noted that the Veteran moved fluidly without muscle guarding. No further functional loss was noted. On VA examination in October 2017, the Veteran reported that his right shoulder pain had worsened, with more intense pain and decreased range of motion. The examiner confirmed that the Veteran’s right shoulder is on his dominant side, and his range of motion was outside normal range. Right shoulder flexion was limited to 90 degrees, and external and internal rotation was limited to 45 degrees. Pain was noted to cause the limitation of motion, and in turn, functional loss. There was no further loss following repetitive testing, but the right shoulder experienced slight muscle loss, active movement against some resistance on forward flexion and abduction. The examiner found infrequent recurrent dislocation/subluxation and guarding of all arm movements on the right side. The examiner further noted that the Veteran cannot do any repeated overhead work, continued reaching, pulling, or pushing. Based on the medical evidence of record, the Board finds that the next higher evaluation of 30 percent is not warranted for impairment of the Veteran’s right shoulder. Throughout the appeal period, examinations have shown that his right shoulder has not experienced frequent recurrent dislocation or subluxation or guarding. The October 2017 examiner noted only infrequent dislocation or subluxation and guarding. Further, the Veteran’s right shoulder range of motion has not been limited to less than shoulder level, and there is no evidence of ankylosis. As such, a higher disability rating is not warranted for the Veteran’s right shoulder disability, and the appeal is denied. Earlier Effective Date – Grant of Service Connection for a Major Depressive Disorder The Veteran contends that grant of service connection for his major depressive disorder warrants an effective date prior to October 3, 2017. Under 38 U.S.C. § 5110(a), the effective date of an award based on an original claim or on a claim reopened after a final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application. The statutory provision is implemented by regulation, which provides that the date of entitlement to an award of service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.155. Under 38 U.S.C. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 C.F.R. § 3.151(a). A claim is defined as a communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). By way of background, the Board notes that, in a March 2018 rating action, the AOJ granted service connection for a major depressive disorder and awarded an evaluation of 70 percent, effective from October 3, 2017, the date of receipt of the Veteran’s claim for service connection. The RO assigned the earliest effective date legally permitted in this case, which is the date the claim was received. No earlier effective date is permitted by law in this case. There is no evidence of record indicating that the Veteran filed a claim or that any claim was pending, formal or informal, for service connection for an acquired psychiatric disorder prior to October 3, 2017. See 38 C.F.R. § 3.155 and 38 C.F.R. § 3.160(c). The Veteran has offered no evidence or argument to the contrary. In summary, the relevant regulations require that the effective date of the award be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. Here, the effective date has been appropriately assigned as October 3, 2017, the date that the Veteran’s claim for service connection was received by VA. The Veteran's claim for an earlier effective date is denied. TDIU A claim for a TDIU is a potential part of a rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). A total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a). A Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating alone is a recognition that the impairment makes it difficult to obtain/keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). In this case, the Veteran has a combined disability rating of 80 percent as of October 3, 2017, including a 70 percent rating for major depressive disorder, a 20 percent rating for status post dislocation of the right shoulder with right shoulder reconstruction, and a noncompensable rating for a surgical scar. Thus, he is eligible for a schedular TDIU, and the Board finds that the issue of his employability has been raised by the record. In a September 2020 medical opinion, Dr. S.E. stated that it was his opinion that it was as least as likely as not that the Veteran’s service-connected right shoulder condition alone has prevented him from being able to work substantially gainful employment. Additionally, the Veteran’s major depressive disorder further impairs his ability to work. In an August 2020 lay statement, the Veteran explained that he stopped working in 2014 due to his right shoulder condition. He stated that his treating physician advised him to discontinue working so that his condition would not be further damaged. The Veteran described difficulties in his daily functioning due to poor grip, impaired find motor skills, and pain associated with his service-connected right shoulder condition. He further explained that his physical limitations have severely affected his mental state and his sleep patterns and that he has since isolated himself, avoids crowds, and is easily irritated. The Veteran’s spouse also submitted a statement in August 2020. She described a deterioration of the Veteran’s overall health, largely explaining that his mental health and handling of stress have changed dramatically in recent years. She stated that his memory has declined and he avoids interactions with others. She stated his medications contribute to his foggy thought process and lack of socialization. According to the record, the Veteran has not maintained gainful employment throughout the appeal period. In light of his right shoulder condition preventing any physical labor of any kind, and his psychiatric symptoms of depression, memory problems, irritability, and isolation, the Board finds the evidence supports a finding of entitlement to a TDIU. The Veteran meets the schedular criteria for a TDIU rating. 38 C.F.R. § 4.16(a). Based on the evidence of record, the Board finds the overall evidence is persuasive that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected major depressive disorder and his service-connected right shoulder disabilities. He is limited both physically and psychologically to the point that gainful employment is not possible. Entitlement to a TDIU is warranted. REASONS FOR REMAND Service Connection for Back and Neck Disabilities The Veteran contends that he has separate back and neck conditions that warrant service connection. The Board finds there is insufficient evidence of record to adjudicate these claims fully. VA treatment records show that, during the appeal period, the Veteran has complained of radiating pain, including “nerve pain,” in his neck and back resulting from his service-connected shoulder condition. The Veteran has not been evaluated for a diagnosable neck or back condition, nor has any functional loss due to pain been assessed. As such, a remand is necessary in order to obtain a medical evaluation and opinion concerning the Veteran’s reported back and neck pain, and the etiology thereof. Accordingly, these matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. Contact the Veteran to determine whether there are any additional relevant private treatment records and procure any necessary authorizations to obtain such records. 2. Then, schedule the Veteran for an appropriate examination to determine the nature and etiology of his reported back and neck pain. The claims file, including this remand, should be reviewed by the examiner and such review should be noted in the examination report. The examiner shoulder determine, and explain the nature and etiology of, the Veteran’s claimed back and neck conditions. Specifically, the examiner should provide an opinion (as well as rationale) as to: a. whether it is at least as likely as not (50 % probability or greater) that any diagnosed back and neck disability (to include any associated functional loss) onset in the Veteran’s active duty or is otherwise related thereto. b. If not, the examiner is asked to opine as to whether any diagnosed back and neck disability (to include any associated functional loss) was caused or aggravated (worsened) by his service-connected right shoulder disability. A complete rationale for any opinion expressed must be provided. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.E. Lee The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.